VIOLETTE, Justice.
Dennis Therriault was convicted of rape, 17-A M.R.S.A. § 252(a)(A) (1983), by a jury after a two day trial held on October 27 and 28, 1982.1 He appeals from a judgment of conviction entered by the Superior Court, Androscoggin County, on January 6, 1983, and assigns several points of error. Because we find that the presiding justice’s refusal to admit in evidence an exculpatory police report offered by defendant constituted prejudicial error, we vacate the judgment of conviction. Although this issue is dispositive of the appeal, we find it necessary to discuss two of defendant’s other claims of error: 1) that he was twice put in jeopardy for the same offense, and 2) that he is entitled to specific performance of a plea bargaining agreement he alleges was reached with the prosecutor prior to trial.
I. Facts.
The State’s case was presented through the testimony of the victim, the victim’s mother and a physician who examined the victim shortly after she complained of the rape. Defendant presented no witnesses, although he did attempt to develop his theory of the case, self-penetration, through cross-examination of the physician and his offer of the laboratory report.
The victim, an eleven year old girl, testified that on the evening of May 10, 1980, she babysat for her next door neighbors, defendant and his wife, in Auburn. At approximately 11:00 p.m. she fell asleep while lying on a mattress that had been placed on the floor in defendant’s living room. Shortly thereafter, defendant returned home alone on his motorcycle. He entered the living room and sat down on the mattress next to the girl. When the victim got up to get her shoes, defendant pulled her back on the mattress and began kissing her. The victim testified that defendant unfastened her brassiere and removed her pants and underwear. According to the victim, defendant then penetrated her vagina with his penis three to five times.
At about this time, the victim’s mother knocked at defendant’s door.2 Defendant did not respond. After repeated knocking went unanswered, the mother entered the unlocked apartment and observed defendant exit the living room. She found her daughter seated on a chair in the living room in the process of putting on her sneakers. The mother testified that her daughter did not look well and acted peculiar.' After being paid for babysitting, the daughter returned home with her mother.
The victim immediately went to the bathroom when she got home. There she discovered blood on her underwear. When she emerged from the bathroom, she asked [989]*989her mother to fasten her brassiere. This request prompted further inquiry from her mother and resulted in the victim telling her mother and father about the rape.
Soon thereafter, the victim was transported to the Central Maine Medical Center in Lewiston where she was examined in the emergency room. The examining physician, John M. James, discovered that the victim had a fresh three or four millimeter laceration of the hymeneal ring. He testified that this finding was consistent with the victim’s complaint of a recent rape and, given the history she related to him, he “felt that this girl had been sexually assaulted.” The doctor also admitted, however, on cross-examination that the injury could have been self-inflicted. In addition, Dr. James testified that as part of the routine procedure performed at the hospital on persons who complain of rape, he and other hospital staff members took specimens from various parts of the victim’s body for testing and comparison with any specimens that might be taken from the body of the accused.
II. Claim of Double Jeopardy.
Defendant was charged with rape in an indictment dated June 9, 1980. He was first tried before a jury in Superior Court, Androscoggin County, on July 8 and 9, 1981. The trial ended in a mistrial when the jury was unable to reach a verdict after deliberating for several hours. Defendant claims that his re-trial in October 1982, violated his right to be free from double jeopardy. Me. Const, art. I, § 8; U.S. Const, amend. Y. We disagree.
The record of defendant’s first trial reveals that the jury retired to deliberate at 11:25 a.m. on July 9, 1981. At 5:08 p.m., with the agreement of the prosecutor and defense counsel, the presiding justice sent the following note to the jury:
Mr. Foreman, is there a reasonable expectation that the jury might reach a unanimous verdict if permitted to deliberate longer?
At 5:18 p.m., the jury was returned to the courtroom and the following colloquy ensued:
THE COURT: Mr. Foreman, in response to my inquiry I have a note from you which indicates that you cannot arrive at a unanimous decision, and it appears that no amount of time has changed your jurisdiction [sic]; is that correct?
MR. FOREMAN: That’s correct, Your Honor.
The presiding justice then stated that the failure to reach a verdict “indicates manifest difficulties” and discharged the jury. A conference followed in chambers regarding defendant’s bail and the restoration of the case on the docket.
We note that at no time during these proceedings did defense counsel raise any objection to the manner in which the presiding Justice communicated with the jury and inquired of the foreman in open court on whether the jury was deadlocked or to the Justice’s declaration of a mistrial on the basis of manifest necessity. Further, according to an affidavit sworn to by defense counsel, he stated that after defendant’s first trial ended in a mistrial and on the same day, he made a plea bargaining agreement with the assistant district attorney who had prosecuted the case. On this record, we conclude that defendant consented to the mistrial and, consequently, cannot now claim he was twice put in jeopardy by his retrial. State v. Fredette, 462 A.2d 17, 20 (Me.1983).
III. Specific Performance of the “Plea Agreement.”
Prior to defendant’s second trial, defense counsel, on April 28, 1982, filed a motion with the Superior Court entitled “Defendant’s Motion for an Order Requiring the State to Specifically Perform According to the Terms of its Negotiated Plea Agreement, or, in the Alternative for an Order Dismissing this Action.” An affidavit stated that on July 9,1981, the day defendant’s first trial ended in a hung jury, defense counsel struck a firm plea bargaining [990]*990agreement with the assistant district attorney who had prosecuted defendant. The agreement provided that in return for defendant’s plea of guilty to a simple assault charge, a Class D offense, the State agreed to dismiss the charge of rape and would recommend a suspended sentence and probation.3 The affidavit stated further that on March 17, 1982, over nine months after the plea agreement was reached, the district attorney advised defense counsel that the State would not accept a guilty plea to a less severe offense than Gross Sexual Misconduct (Class C) in exchange for a dismissal of the rape charge.4 Defendant was unwilling to plead to the more serious charge. Although the affidavit states that defense counsel promptly made it known to the district attorney’s office that his client wanted to plead to the simple assault “as soon as possible” after the agreement was reached, defendant never entered a guilty plea with the court.
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VIOLETTE, Justice.
Dennis Therriault was convicted of rape, 17-A M.R.S.A. § 252(a)(A) (1983), by a jury after a two day trial held on October 27 and 28, 1982.1 He appeals from a judgment of conviction entered by the Superior Court, Androscoggin County, on January 6, 1983, and assigns several points of error. Because we find that the presiding justice’s refusal to admit in evidence an exculpatory police report offered by defendant constituted prejudicial error, we vacate the judgment of conviction. Although this issue is dispositive of the appeal, we find it necessary to discuss two of defendant’s other claims of error: 1) that he was twice put in jeopardy for the same offense, and 2) that he is entitled to specific performance of a plea bargaining agreement he alleges was reached with the prosecutor prior to trial.
I. Facts.
The State’s case was presented through the testimony of the victim, the victim’s mother and a physician who examined the victim shortly after she complained of the rape. Defendant presented no witnesses, although he did attempt to develop his theory of the case, self-penetration, through cross-examination of the physician and his offer of the laboratory report.
The victim, an eleven year old girl, testified that on the evening of May 10, 1980, she babysat for her next door neighbors, defendant and his wife, in Auburn. At approximately 11:00 p.m. she fell asleep while lying on a mattress that had been placed on the floor in defendant’s living room. Shortly thereafter, defendant returned home alone on his motorcycle. He entered the living room and sat down on the mattress next to the girl. When the victim got up to get her shoes, defendant pulled her back on the mattress and began kissing her. The victim testified that defendant unfastened her brassiere and removed her pants and underwear. According to the victim, defendant then penetrated her vagina with his penis three to five times.
At about this time, the victim’s mother knocked at defendant’s door.2 Defendant did not respond. After repeated knocking went unanswered, the mother entered the unlocked apartment and observed defendant exit the living room. She found her daughter seated on a chair in the living room in the process of putting on her sneakers. The mother testified that her daughter did not look well and acted peculiar.' After being paid for babysitting, the daughter returned home with her mother.
The victim immediately went to the bathroom when she got home. There she discovered blood on her underwear. When she emerged from the bathroom, she asked [989]*989her mother to fasten her brassiere. This request prompted further inquiry from her mother and resulted in the victim telling her mother and father about the rape.
Soon thereafter, the victim was transported to the Central Maine Medical Center in Lewiston where she was examined in the emergency room. The examining physician, John M. James, discovered that the victim had a fresh three or four millimeter laceration of the hymeneal ring. He testified that this finding was consistent with the victim’s complaint of a recent rape and, given the history she related to him, he “felt that this girl had been sexually assaulted.” The doctor also admitted, however, on cross-examination that the injury could have been self-inflicted. In addition, Dr. James testified that as part of the routine procedure performed at the hospital on persons who complain of rape, he and other hospital staff members took specimens from various parts of the victim’s body for testing and comparison with any specimens that might be taken from the body of the accused.
II. Claim of Double Jeopardy.
Defendant was charged with rape in an indictment dated June 9, 1980. He was first tried before a jury in Superior Court, Androscoggin County, on July 8 and 9, 1981. The trial ended in a mistrial when the jury was unable to reach a verdict after deliberating for several hours. Defendant claims that his re-trial in October 1982, violated his right to be free from double jeopardy. Me. Const, art. I, § 8; U.S. Const, amend. Y. We disagree.
The record of defendant’s first trial reveals that the jury retired to deliberate at 11:25 a.m. on July 9, 1981. At 5:08 p.m., with the agreement of the prosecutor and defense counsel, the presiding justice sent the following note to the jury:
Mr. Foreman, is there a reasonable expectation that the jury might reach a unanimous verdict if permitted to deliberate longer?
At 5:18 p.m., the jury was returned to the courtroom and the following colloquy ensued:
THE COURT: Mr. Foreman, in response to my inquiry I have a note from you which indicates that you cannot arrive at a unanimous decision, and it appears that no amount of time has changed your jurisdiction [sic]; is that correct?
MR. FOREMAN: That’s correct, Your Honor.
The presiding justice then stated that the failure to reach a verdict “indicates manifest difficulties” and discharged the jury. A conference followed in chambers regarding defendant’s bail and the restoration of the case on the docket.
We note that at no time during these proceedings did defense counsel raise any objection to the manner in which the presiding Justice communicated with the jury and inquired of the foreman in open court on whether the jury was deadlocked or to the Justice’s declaration of a mistrial on the basis of manifest necessity. Further, according to an affidavit sworn to by defense counsel, he stated that after defendant’s first trial ended in a mistrial and on the same day, he made a plea bargaining agreement with the assistant district attorney who had prosecuted the case. On this record, we conclude that defendant consented to the mistrial and, consequently, cannot now claim he was twice put in jeopardy by his retrial. State v. Fredette, 462 A.2d 17, 20 (Me.1983).
III. Specific Performance of the “Plea Agreement.”
Prior to defendant’s second trial, defense counsel, on April 28, 1982, filed a motion with the Superior Court entitled “Defendant’s Motion for an Order Requiring the State to Specifically Perform According to the Terms of its Negotiated Plea Agreement, or, in the Alternative for an Order Dismissing this Action.” An affidavit stated that on July 9,1981, the day defendant’s first trial ended in a hung jury, defense counsel struck a firm plea bargaining [990]*990agreement with the assistant district attorney who had prosecuted defendant. The agreement provided that in return for defendant’s plea of guilty to a simple assault charge, a Class D offense, the State agreed to dismiss the charge of rape and would recommend a suspended sentence and probation.3 The affidavit stated further that on March 17, 1982, over nine months after the plea agreement was reached, the district attorney advised defense counsel that the State would not accept a guilty plea to a less severe offense than Gross Sexual Misconduct (Class C) in exchange for a dismissal of the rape charge.4 Defendant was unwilling to plead to the more serious charge. Although the affidavit states that defense counsel promptly made it known to the district attorney’s office that his client wanted to plead to the simple assault “as soon as possible” after the agreement was reached, defendant never entered a guilty plea with the court.
The parties agreed that the motion be decided solely on the basis of defense counsel’s affidavit. The motion justice ruled that even if the facts averred in the affidavit were true, defendant was not entitled to specific performance of the plea agreement since he had not pleaded guilty to the reduced charge nor demonstrated that he had relied to his detriment on the assistant district attorney’s representations. Defendant argues on appeal that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), requires specific performance of the unconsummated plea bargain in the instant case.5 In Santobello, the Supreme Court endorsed plea bargaining as an “essential component of the administration of justice” which, if properly administered, “is to be encouraged.” Id. at 260, 92 S.Ct. at 497-98. The Court’s approval was based on a supposition of fairness in securing the plea agreement and the recognition that judicial acceptance of a plea agreement “must be attended by safeguards to insure the defendant what is reasonably due under the circumstances.” Id. at 261-62, 92 S.Ct. at 498-99.
Any notion that Santobello stands as authority for defendant’s position, however, was laid to rest in Mabry v. Johnson, — U.S. -, 104 S.Ct 2543, 81 L.Ed.2d 437 (1984). In reversing an Eighth Circuit [991]*991decision6 that would have effectively precluded prosecutorial withdrawal of a plea proposal once a defendant’s acceptance had been communicated to the prosecutor, the Supreme Court in Mabry stated that “[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.” Id. — U.S. at-, 104 S.Ct. at 2546. Accepting as true, therefore, the facts stated in the affidavit filed by defendant’s attorney in the present case, Mabry teaches that defendant had no enforceable right to plead guilty to simple assault in exchange for dismissal of the rape charge. Although the State made such an offer, defendant never pleaded guilty nor in any other way relied on the offer to his detriment.7 The Superior Court committed no error when it denied defendant’s “Motion for Specific Performance.”
IV. The Police Laboratory Report.
During the first trial, defendant’s attorney offered a two page report completed at the Maine State Police Crime Laboratory. The report was admitted without objection. It is dated May 14, 1980, and is signed by Maine State Police trooper Marc Anton. Anton died prior to the first trial The report is typewritten on Maine State Police letterhead and states that it was completed at the request of the City of Auburn Police Department. It reveals that at 11:00 a.m. on May 12, 1980, the crime laboratory received for analysis the bedding on which the victim said the attack occurred, the clothes the victim was wearing at the time of the assault and two “Rape Kits,” one from the victim and one from defendant. The “Rape Kits,” consisted of samples taken from the bodies of the victim and defendant including evidence such as fingernail scrapings, hair samples and vaginal, rectal and saliva swabs. The laboratory report lists the types of examinations requested by the Auburn Police Department as follows:
1. Forensic Serology for human semen.
2. Forensic Microscopy of human hairs.
3. Physical examination of clothes for rips and tears.
The report states the examination findings as follows:
1. No traces of semen found to be present on submitted items of evidence.
2. No foreign hairs were present to compare to known samples — no microscopy analysis conducted.
3. No rips and tears noted in victim’s clothes.
At defendant’s second trial on October 27 and 28, 1982, the State’s case was presented by a different prosecutor, the district attorney for Androscoggin County. Defendant also was represented by new counsel. After the jury was empaneled, but prior to opening statement, the district attorney advised defense counsel, in the presiding justice’s chambers, that she would not stipulate to the admission of the laboratory report, that she was not planning to offer it as evidence at trial and would object to its admission on grounds of hearsay if offered by defendant. During this discussion, the justice ruled that because the report was admitted at the first trial without objection the State was deemed to have waived any objection based on authenticity. The justice ruled, however, that the State could still object to the report’s admissibility at trial on other evidentiary grounds, [992]*992such as hearsay. Prior to the taking of any testimony, therefore, defense counsel was fully aware that he would have to establish its admissibility under the Maine Rules of Evidence. Defendant, in fact, offered the report under several theories, all of which were rejected by the trial justice.8
Defendant initially offered the report as admission by a party-opponent under M.R. Evid. 801(d)(2). Defendant cited no authority supporting his offer to the presiding justice nor has he cited any supporting authority in his brief to this Court. Rule 801(d)(2) provides:
RULE 801. DEFINITIONS
(d) Statements which are not hearsay. A statement is not hearsay if:
(2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
We note that M.R.Evid. 801(d)(2) is identical to its federal counterpart. Fed.R. Evid. 801(d)(2). Prior to the adoption of the Federal Rules of Evidence, admissions by government employees in criminal cases were viewed as outside the “admission by a party-opponent” exception to the hearsay rule. United States v. Powers, 467 F.2d 1089, 1095 (7th Cir.1972); United States v. Santos, 372 F.2d 177, 180 (2d Cir.1967). The Santos court explained why it is inappropriate to consider a government agent’s statement as a party-opponent admission in the context of a criminal prosecution:
Though a government prosecution is an exemplification of the adversary process, nevertheless, when the Government prosecutes, it prosecutes on behalf of all the people of the [State]; therefore all persons, whether law enforcement agents, government investigators, complaining prosecuting witnesses, or the like, who testify on behalf of the prosecution, and who, because of an employment relation or other personal interest in the outcome of the prosecution, may happen to be inseparably connected with the government side of the adversary process, stand in relation to the [State] and in relation to the defendant no differently from persons unconnected with the effective development of or furtherance of the success of, the prosecution.
Id. at 180. We find nothing in the Federal Rules of Evidence nor in Maine’s adoption of M.R.Evid. 801(d)(2) suggesting an intent to alter the rule as explained in Powers and Santos. See United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir.1979). We hold, therefore, that the laboratory report was not admissible in the present case under any part of M.R.Evid. 801(d)(2).9
[993]*993Defendant also offered the report as a record of regularly conducted activity of the Maine State Police Crime Laboratory under M.R.Evid. 803(6), the “business records” exception to the hearsay rule.10 Again, defendant cited no case authority to the trial justice or to this Court in support of his offer. Other courts have recognized, however, that police reports can qualify as business records and, therefore, are admissible at trial if they meet the requirements of Rule 803(6). E.g., United States v. Scholle, 553 F.2d 1109, 1124 (8th Cir.1977) (computer printouts of physical characteristics of illegal drugs seized by authorities admissible in conspiracy prosecution); United States v. Smith, 521 F.2d 957, 964 (D.C.Cir.1975) (official police record of reported crime admissible as substantive evidence of date crime was reported); see Cruz v. State, 645 S.W.2d 498, 505 (Tex. App.1982) (city toxicologist’s report stating substance submitted for analysis to be heroin admissible in prosecution for attempted capital murder and deadly assault on a police officer). The State objected to the admission of the report under this exception on the ground that the preparer of the report was dead, a fact that prevented the prosecutor from testing the accuracy of the report by cross-examination. The State also claimed that the report was untrustworthy, although it suggested no reason why the report was unreliable and nothing on the face of the report suggests that it was altered or amended after it was sent to the Auburn Police Department from the crime laboratory.
There can be no dispute that the laboratory report is hearsay, M.R.Evid. 801(c), and must be excluded unless it qualifies for admission under an exception to the hearsay rule. M.R.Evid. 802. The business records exception provides in its entirety:
RULE 803. HEARSAY EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regular conducted business, and if it was the regular practice of that business to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in the paragraph includes business institution, association, profes[994]*994sion, occupation, and calling of every kind, whether or not conducted for profit.
A relevant writing, therefore, qualifies for admission under this exception when (1) the record was made at or near the time of the transaction by a person with knowledge of the event, (2) the record was kept in the regular course of business, (3) the business regularly made such records and (4) the circumstances surrounding the preparation of the record do not indicate a lack of trustworthiness. The party offering the record, defendant in the present case, must produce the custodian of the record, or “other qualified witness,” to establish the first three requirements listed above. State v. Burnham, 427 A.2d 969, 972 (Me. 1981); State v. Howard, 405 A.2d 206, 210 (Me.1979); see State v. Viger, 392 A.2d 1080, 1083 (Me.1978); see generally 4 J. Weinstein & M. Berger, Weinstein’s Evidence, ÍÍ 803(6)[02] (1981 & Supp.1983). Defendant called no such witness. Usually, such an omission would be “fatal to the document’s admissibility as a business record.” Howard, 405 A.2d at 210. Under the particular facts of the instant case, however, defendant’s failure to elicit proper foundation testimony from the “custodian or other qualified witness,” does not defeat his effort to have the laboratory report admitted.
After the State rested its case, defense counsel renewed his motion to admit the report. Counsel’s motion took the form of an offer of proof. Counsel stated:
I would indicate to the Court that if the Court were inclined to hear witnesses, I would attempt to show that this falls under the business records exception, that is, that it was a report made at or near the time by or from information transmitted by a person with knowledge, and kept in the course of a regular conducted business, and it was the regular practice of that business to make that report as would be shown by the custodian or other qualified witness, custodian of that report. So, I make the offer of proof.
The presiding justice responded:
I really don’t think that an investigative report falls within the meaning, at least generally, of 803(6), and I would — I would allow the offer of proof on the record, but would still sustain the objection of the State as to its admissibility.
I assume you could show through the custodian or something that these lab reports are done at the request of either the Attorney General’s office or the District Attorney’s office, or the State Police investigators or police departments. But I guess what I’m saying is that I don’t think that that kind of report is — comes within the meaning of something kept in the course of a regularly conducted business within the meaning of 803(6).
The exception of 803(6) is designed to encompass those things that are kind of routinely or regularly kept, and they have a certain amount of trustworthiness whereas I think a report, a diagnosis, of a particular case I don’t think has that— carries that kind of routine aspect and that trustworthiness aspect, and, therefore, I don’t think it falls within the exception.
I don’t think there’s any problem with the fact that it’s a state agency because I think “business” is very broadly defined, and I would think it would fall within the word “business", but I don't think it's that kind of a diagnosis or report. I think it’s admissible only if it’s subject to cross-examination.
The justice, therefore, told defense counsel that even if counsel were to call the custodian for the purpose of establishing a proper foundation, the report would not have been admitted because it was an investigative report lacking trustworthiness and because it was not subject to cross-examination. Had the justice not made this ruling, defense counsel would have called the custodian of the records or other qualified [995]*995witness to establish a proper foundation for admission under Rule 803(6). Accordingly, we cannot hold that defendant’s attempt to introduce the report must fail because of inadequate foundation testimony-
Initially, we emphasize the atypical posture of the evidentiary issue presented for review. The present case is not one in which the State is offering an incriminating police report as part of its case in chief in lieu of the direct testimony of the arresting or investigating officer. We are not concerned, therefore, with constitutional considerations regarding a criminal defendant’s right to confront and cross-examine his accusers. Me. Const, art. I, § 6; U.S. Const, amend. VI. Instead, we are faced with the highly unusual case where a defendant seeks to have a report that was prepared by a law enforcement officer admitted under the business records exception, to rebut the State’s case against him.11
The justice clearly stated that the laboratory report was not admissible under Rule 803(6) because it was an investigative report or a “diagnosis of a particular case” that lacked trustworthiness. According to the justice, the report was admissible only if it were subject to cross-examination. The justice's ruling was a preliminary determination of the admissibility of the report under M.R.Evid. 104(a).12 We may vacate the judgment of conviction in the present case only if the ruling was erroneous and a substantial right of defendant was affected by the ruling. M.R.Evid. 103(a)(2).13
The test for admissibility of a laboratory report under Rule 803(6) focuses on the knowledge of the person making the report, the contemporaneousness of the making of the report with the observance of the facts being reported, the “regularity” of the recording and keeping of the report and the report’s trustworthiness. The presiding justice labeled the laboratory report in the present case “investigative” and, as such, ruled that it could not qualify for admission under Rule 803(6). The test for admissibility under Rule 803(6), however, does not concern the “investigative” or “non-investigative” nature of the report being offered. The fact that Trooper Anton’s report was “investigative” in the sense that it was completed at the request of a local police department and concerned the investigation of possible criminal activity in a particular case does not per se remove the report from the business records exception. The justice erred when he concluded that an “investigative” report could not qualify for admission under Rule 803(6).
The justice also concluded that the report was untrustworthy. Lack of trustworthiness is a proper ground for excluding from evidence an otherwise quali[996]*996fied business record. The record on appeal, however, reveals no basis for such a conclusion. Commonly, a “lack of trustworthiness” finding is predicated on a finding that the record was altered after it left the control of the preparer or custodian of the report, see, e.g., United States v. Oates, 560 F.2d 45, 65, 75 (2d Cir.1977), or that the preparer had some motivation to misrepresent or misstate results contained in the report, see, e.g. Palmer v. Hoffman, 318 U.S. 109, 113-14, 63 S.Ct. 477, 480-81, 87 L.Ed. 645 (1943), or that the report was prepared in anticipation of litigation. See, e.g., id. at 114, 63 S.Ct. at 480-81; United States v. Williams, 661 F.2d 528, 531 (5th Cir.1981); Gilmour v. Strescon Industries, Inc., 66 F.R.D. 146, 150 (E.D.Pa.), aff'd mem., 521 F.2d 1398 (3d Cir.1975).
There is no indication that Anton’s laboratory report was altered after he completed it. Its authenticity was not disputed at trial. In addition, we perceive no basis for any claim that Anton was improperly motivated to produce a report containing no inculpatory findings. Further, even jf we concede that the report was prepared in anticipation of litigation, it was not offered by the party on whose behalf the report was made. The “prepared in anticipation of litigation” argument carries no weight when the report is offered by the party who did not request that the report be made. United States v. Smith, 521 F.2d 957, 967 (D.C.Cir.1975); see Battee v. State, 543 S.W.2d 91, 92 (Tex.Crim.App. 1976).
Finally, “[t]here are circumstantial guarantees of trustworthiness in a record contemporaneously prepared by one who acts under a business duty of care and accuracy particularly when the business entity for which the record is made relies on it.” United States v. Licavoli, 604 F.2d 613, 622 (9th Cir.1979); see State v. Cosgrove, 181 Conn. 562, 574-578, 436 A.2d 33, 40-41 (1980). Trooper Anton’s report is dated two days after he received the “rape kits” from the Auburn Police Department. It cannot be disputed that Anton was under a business duty to report his findings accurately in order to preserve his job and the integrity of the state crime laboratory. Law enforcement agencies rely daily on laboratory reports to assist in the apprehension and prosecution of those suspected of criminal activity. There is nothing in Anton’s report, and the State has cited no facts of record, suggesting that Anton deviated from his duty to test the submitted items of evidence properly and to communicate his findings accurately to the Auburn Police Department.
In addition to his “lack of trustworthiness” finding, the justice stated later, after defendant’s offer, that if Anton’s report were admissible at all, it would be so only if it were subject to cross-examination.14 We note initially that Rule 803(6), by its terms, does not predicate the admission of a business record on the ability of the opposing party to cross-examine the preparer of the record. Rule 803(6) applies to all cases where the admissibility of a business record is at issue, regardless of whether the declarant is available. Moreover, the State, unlike a criminal defendant, enjoys no right of confrontation under the constitutions of Maine or the United States. Me. Const, art. I, § 6; U.S. Const, amend. VI.15 The State’s inability to cross-examine the preparer of the report offered in the present case is of no consequence to the report’s admissibility under the business records exception.16 The justice erred [997]*997in concluding that Anton’s report was inadmissible because of the State’s inability to cross-examine.
On the facts of this case, therefore, it was error for the presiding justice to have ruled that the laboratory report was inadmissible under the business records exception to the hearsay rule.17 We cannot conclude on the present record that it is highly probabie that the error did not affect the judgment.18 State v. Rytky, 476 A.2d 1152 at 1155, slip op. at 6 (Me. 1984); see State v. True, 438 A.2d 460, 467 (Me.1981). Accordingly, we must vacate defendant’s conviction.
Although defendant produced no witnesses nor testified on his own behalf, he attempted to develop his theory of self-penetration in his cross-examination of the examining physician and in his offer of the laboratory report. The laboratory report states that no traces of semen were found on the submitted items of evidence19 and that no foreign hairs were present to compare to the known samples taken from the victim and defendant.20 It cannot be disputed, therefore, that Anton’s report states no findings that support the rape charge.
Although not dispositive of the issue of defendant’s guilt or innocence, the report is consistent with defendant’s self-penetration theory and tends to exculpate defendant. Specifically, the report’s finding that no semen was present on the evidence submitted for analysis contradicts an emergency room report properly admitted at trial wherein an emergency room nurse reported that the victim’s assailant “apparently did ejaculate.” In addition, although the [998]*998jury heard testimony from the examining physician that “samples” from the bodies of the victim and alleged assailant are taken as a matter of course in rape investigations, and that such samples were taken from the victim in the present case, the fact that tests were completed on the samples taken from both the victim and defendant and the results of such tests were kept from the jury because of the justice’s refusal to admit the laboratory report. In seeking admission of the report, defendant was attempting merely to show that the tests completed at the request of the Auburn Police Department in no way corroborated the victim’s testimony nor lent support to Dr. James’ opinion testimony relating to the cause of the hymeneal tear. Although the report does not establish defendant’s innocence, it does constitute evidence that tends to support defendant’s claim that he did not commit the rape. We conclude that the error committed by the presiding justice in refusing to admit the report was prejudicial.21 Because of our disposition of the case, we find it unnecessary to reach defendant’s other claims of error.
The entry is:
Judgment vacated.
Remanded for further proceedings consistent with the opinion herein.
McKUSICK, C.J., and ROBERTS, and GLASSMAN, JJ., concurring.